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  • — Mr. L.R Gupta with Mr. S.K Tiwari, Advocates.
  • — B.N Kirpal, Advocate.
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  • V Misra
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  • — Mr. L.R Gupta with Mr. S.K Tiwari, Advocates.
  • — B.N Kirpal, Advocate.
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  • V Misra
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Smart Summary

Judgment Summary — V.D. Misra, J. (Second Appeal under Section 39, Delhi Rent Control Act, 1958)

Factual and Procedural Background

The appellant (the landlord) brought this second appeal under section 39 of the Delhi Rent Control Act, 1958 against an order of the Rent Control Tribunal which had upheld the decision of the Additional Rent Controller dismissing the landlord's application for eviction of the tenant. The principal factual matrix as recorded in the opinion is as follows:

  • Mst. Kalsum Bi owned premises bearing municipal Nos. 1817 to 1821. M/s. Bhagwan Dass Faqir Chand (the tenant) became tenant under Mst. Kalsum Bi about 25–30 years earlier and sublet portions from time to time.
  • A portion had earlier been sublet to M/s. Delhi Vanaspati Syndicate (the eventual purchaser, referred to in the opinion as the 'Landlord'). The landlord purchased the entire building in 1958 from Mst. Kalsum Bi through her attorney Habib ul Rehman.
  • After purchase, the landlord sought eviction under clauses (b) and (g) of the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958, alleging (a) that the tenant had sublet parts of the premises without obtaining the landlord's written consent and (b) that the landlord required the building bona fide for reconstruction. The landlord alleged specific sublettings: shop No. 1818 in 1955 and Balakhana (No. 1817) in 1956.
  • The tenant denied that the landlord required the premises for reconstruction and asserted he had been authorised to sublet, having obtained written consent from Mst. Kalsum Bi (the original owner).
  • In 1956 Mst. Kalsum Bi served a notice of ejectment on the tenant (Exh. R-1), and by a writing on the back of that notice dated 29-6-1956 (Exh. R-2) Habib ul Rehman, Mukhtiar of Mst. Kalsum Bi, cancelled the notice in consideration of the tenant agreeing to pay enhanced rent (from Rs. 137/8/- to Rs. 185/- per month). Rent receipts Exhs. R-26 and R-27 document payments at the differing rates; the tenant continued to pay at the enhanced rate until the building was sold to the landlord.
  • The Additional Rent Controller concluded (inter alia) that two sub-tenancies had been created prior to the coming into force of the Delhi & Ajmer Rent Control Act, 1952, the remaining sub-tenancies thereafter; that Mst. Kalsum Bi (through Habib ul Rehman) had given written consent to sub-letting; and that the landlord did not require the premises for bona fide reconstruction. The landlord's eviction application was dismissed.
  • The Rent Control Tribunal upheld the Additional Rent Controller's findings: it held Exh. R-2 genuine, that prior written consent in the precise terms of Section 14(1)(b) was not necessary before creating the sub-tenancies, and that the consent given via Habib ul Rehman was not illegal. The Tribunal dismissed the landlord's appeal. The present matter proceeded to this Court under section 39, limited to substantial questions of law.

Legal Issues Presented

  1. Whether the writing Exh. R-2 (and associated rent receipts Exhs. R-26 and R-27) constituted a genuine and effective "consent in writing" for subletting under Section 14(1)(b) of the Delhi Rent Control Act, 1958.
  2. Whether the statutory requirement of "consent in writing" in relation to subletting (as reflected in Section 16 and Section 14(1)(b)) must be obtained prior to the act of subletting (i.e., whether consent obtained after subletting can validate a previously created sub-tenancy).
  3. Whether the consent said to have been given by Mst. Kalsum Bi (through her attorney) was illegal because it was given in consideration of an enhanced rent, in alleged breach of Sections 5 and 16(4) of the Delhi Rent Control Act, 1958.
  4. Whether, insofar as the initial act of subletting may have been without prior consent, a subsequent consent (or conduct by the landlord) could operate to waive or validate the subletting (questions about waiver and the legality of consent given during pendency of proceedings).
  5. Whether the landlord required the premises bona fide for reconstruction (a factual issue that was in contest below).

Arguments of the Parties

Appellant (Landlord) — Mr. L.R. Gupta

  • Contended that Exh. R-2 was not genuine and was forged.
  • Argued that Exh. R-2 together with rent receipts Exhs. R-26 and R-27 did not amount to "consent in writing" required by Section 14(1)(b).
  • Maintained that the required consent in writing should have been obtained prior to the act of subletting and that consent obtained after subletting cannot save the tenant from eviction (relying on Section 16 and certain case-law).
  • Contended that the consent was illegal because it was given in consideration of enhanced rent (claimed to be in breach of Sections 5 and 16(4) of the Act), rendering the consent void as against public policy.
  • Argued that an initial act of subletting without prior consent being illegal, a subsequent consent (including consent given during pendency of suit) would be void and could not preclude eviction; relied upon Sections 86 and 92 of the Civil Procedure Code and several precedents.

Respondent / Tribunal Findings (as represented in the opinion)

  • The Tribunal and the Additional Rent Controller found Exh. R-2 genuine after considering evidence, including witness statements (e.g., Om Parkash RW2 and Jagdish Pershad RW3 who were present when Exh. R-2 was written).
  • The Tribunal held that it was not necessary, for the purposes of Section 14(1)(b) of the Act of 1958, that consent in writing be obtained before the creation of a sub-tenancy; consent given after subletting could be effective.
  • The Tribunal held that the consent given by Mst. Kalsum Bi through her attorney was not illegal; in particular, there was no evidence that the enhanced rent exceeded the standard rent or that any premium/pugree had been received for consent.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Karam Singh Sobti v. Partap Chand and another, 1964 P.L.R. 210 Referred to a passing observation that subletting after June 1952 without previous consent in writing was treated as unlawful (as remarked by the Supreme Court in that decision). The Court examined the judgment and held that those observations were not concerned with Section 14(1)(b) or Section 16 of the Act of 1958 or Section 13(1)(b) of the Act of 1952 in detail; thus the Court refused to treat Karam Singh Sobti as laying down that consent must be obtained prior to creation of sub-tenancy after June 1952.
Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., A.I.R. 1959 S.C. 689 Interpreted the Bombay Rents, Hotel and Lodging House Rates Control Act to hold that where subletting was absolutely prohibited, an agreement made contrary to that prohibition would be unenforceable. The Court observed that the Delhi Rent Control Acts did not absolutely prohibit subletting as in the Bombay Act; thus the appellant could not derive benefit from this authority. The Court relied on this precedent to distinguish the present statutory regime.
Mohan Chand v. Manindra Nath, A.I.R. 1955 Cal. 442 Authority cited in connection with the proposition that consent given during the pendency of suit was held illegal in certain contexts (relating to Sections 86 and 92 CPC). The Court noted the citation but expressly stated that, in view of its decision on the availability of consent under the Act of 1952, it did not need to decide the question raised by these precedents concerning consent during pendency.
Thakore Saheb Khanji Kashari Khanji v. Gulam Rasul Chandbhai, A.I.R. 1955 Bombay 449 Also cited on the question of legality of consent given during proceedings (as instances where such consent was held illegal). Again, the Court recorded the citation but did not decide the related question because its primary statutory interpretation made that issue unnecessary to decide.
Gaekwar Baroda State Railway v. Hafiz Habib Ul Haq and others, A.I.R. 1938 P.C. 165 Cited as another authority where consent during pendency was held illegal (related to waiver/consent doctrines). The Court referenced the case in the compilation of authorities but did not resolve that issue on the present facts for the reasons stated in the judgment.
Vellayan Chettiar and others v. The Government of Province of Madras and another, A.I.R. 1947 P.C. 197 Dealing with Section 80 C.P.C.; held that though mandatory provisions must be enforced, they could be waived by the authority for whose benefit they were provided. The Court noted this precedent (referred to by Respondent's counsel) to illustrate that mandatory procedural conditions can, in certain contexts, be waived by the beneficiary; but the Court did not base its final disposal on this authority.

Court's Reasoning and Analysis

The Court's analytical approach proceeded in distinct steps, sticking closely to statutory text and the limits of an appeal under section 39:

  1. Scope of Appeal under Section 39: The Court reiterated that an appeal under sub-section (2) of Section 39 of the Act of 1958 lies to this Court only on a substantial question of law. The Court therefore could not re-assess evidence afresh or revisit the Tribunal's factual findings and was bound by the Tribunal's decision on questions of fact.
  2. Findings on Genuineness of Exh. R-2: The landlord's challenge that Exh. R-2 was forged was addressed: the Tribunal had, after detailed consideration of evidence (including witness statements of persons present when Exh. R-2 was written), found the writing genuine. The Court treated that as a finding of fact which could not be interfered with in the present appeal under Section 39.
  3. Interpretation of Statutory Provisions (Sections 14 and 16):
    • The Court analyzed Section 14(1)(b) of the Act of 1958 and Section 16 (particularly sub-sections (1), (2) and (3)). Sub-section (1) of Section 16 deems subletting lawful if it occurred before 9 June 1952 and the sub-tenant remained in occupation at the commencement of the Act. Sub-section (2) provides that sublettings on or after 9 June 1952 without obtaining the landlord's consent in writing shall not be deemed lawful.
    • The Court emphasized the distinction in language between sub-section (2) (which omits the word "previous") and sub-section (3) (which expressly uses "previous" in prohibiting subletting after the commencement of the Act of 1958 without the previous consent of the landlord). The Court reasoned that when the legislature intended to require consent before the act, it used the word "previous"; its absence in sub-section (2) indicates no such requirement was intended for the 9 June 1952 line of cases.
    • The Court explained the historical purpose: the Act of 1952 required consent in writing to reduce litigation and to record landlord's acquiescence; the legislature did not require that the consent always be obtained prior to the act of subletting, because a landlord could agree to subletting either before or after it had occurred.
  4. Application to Karam Singh Sobti: The Court examined the Supreme Court decision in Karam Singh Sobti and determined that the passing observations relied upon by the appellant were not focused on Sections 14(1)(b) or 16 of the Act of 1958 (or Section 13(1)(b) of Act of 1952) and did not establish the proposition that consent in writing must be obtained prior to the creation of a sub-tenancy after June 1952.
  5. Allegation of Illegality of Consent (Enhanced Rent):
    • The appellant argued that the consent was illegal because it was given in return for an enhanced rent, contrary to Sections 5 and 16(4) of the Act of 1958 which prohibit claiming rent in excess of standard rent and receiving any premium/pugree or other consideration for consenting to subletting.
    • The Court noted there was no evidence on record of what the standard rent for the premises actually was, and the exchanged notices did not establish the standard rent (the landlord's notice alleged the standard rent not less than Rs. 200, the tenant said it could not be more than Rs. 185). Absent proof that the enhanced rent exceeded the standard rent, the mere fact of enhancement could not be treated as illegal.
    • The Court also observed that there was no case made out that any premium or pugree had been received for giving consent. Since the Delhi Rent Control Acts did not absolutely prohibit subletting, the Waman Kini precedent relating to an absolute prohibition under a different statute did not assist the appellant.
  6. Waiver / Subsequent Consent Issues: The appellant relied on authorities under the Civil Procedure Code where consent given during the pendency of suit was held illegal. The Court, however, stated that because it had held that a tenant could obtain the landlord's consent in writing under the Act of 1952 even after the subletting, it was unnecessary to decide the separate and contested question of the effect of consent given during the pendency of proceedings.

Holding and Implications

Holding: The appeal is DISMISSED.

The Court affirmed the Tribunal's and the Additional Rent Controller's factual findings (including the genuineness of Exh. R-2 and the conclusion that the landlord did not require the premises bona fide for reconstruction) and agreed with the Tribunal's interpretation that a landlord's written consent need not, under the relevant provisions, have been obtained prior to the creation of a sub-tenancy after 9 June 1952.

Immediate consequences and practical implications:

  • The landlord's application for eviction (as dismissed by the courts below) remains dismissed; the tenant's possession is unaffected by this appeal.
  • The parties were directed to bear their own costs.
  • The Court's statutory interpretation clarifies that, under the textual reading applied by this Court, Section 16(2) does not require that consent in writing must have been obtained prior to subletting for all sublettings after 9 June 1952; the presence of "previous" in Section 16(3) but its absence in Section 16(2) informed this conclusion. (This interpretative point is the legal reasoning used by the Court in resolving the appeal.)

The Court did not decide the separate question whether consent given during the pendency of proceedings is always ineffective, because that issue was not necessary for the disposal of this appeal in view of the statutory interpretation adopted.

Disposition: Appeal dismissed.

Show full summary ...

    M/S Delhi Vanaspati Syndicate v. M/S Bhagwan Das Faqir Chand

    V.D Misra, J.:— This is landlord's second appeal under section 39 of the Delhi Rent Control Act, 1958 against the order of the Rent Control Tribunal up-holding the order of the Additional Rent Controller dismissing the application for eviction of the tenant.

    One Kalsum Bi was the owner of the premises bearing municipal Nos. 1817 to 1821. M/s. Bhagwan Dass Faqir Chand (hereinafter called the ‘Tenant’) became a tenant under Mst. Kalsum Bi about 25/30 years ago. Portions of the property were sublet from time to time to various persons. A part of the property was sublet to M/s. Delhi Vanaspati Syndicate (hereinatfer called the ‘Landlord’). The entire building was purchased by the landlord in 1958 from Mst. Kalsum Bi through her attorney Habib ul Rehman. Thereafter, an application for eviction of the tenant under clauses (b) and (g) of the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as Act of 1958) was made on the grounds that the tenant had sublet the premises without obtaining the consent of the landlord in writing and that the landlord required the building bona fide for the purposes of reconstruction. It was alleged that shop No. 1818 was sublet in 1955 and that Balakhana, bearing municipal No. 1817, was sublet by the tenant to the land-lord somewhere in 1956. The tenant resisted the claim of the landlord for eviction on the ground that he was authorised to sublet and had obtained consent in writing from Mst. Kalsumbi. He denied that landlord required the building for reconstruction.
    Mst. Kalsum Bi had served a notice of ejectment on the tenant in 1956 (Exh. R-1) on the ground that he had sublet, assigned or otherwise parted with possession, of the part of the tenancy premises without the consent of the landlord (Mst. Kalsum Bi) and substantial damage had been caused to the premises. By a writing, Exh. R-2, dated 29-6-1956 on the back of notice Exh. R-1, Habib Ul Rehman, Mukhtiar of Mst. Kalsum Bi, cancelled and withdrew the notice in consideration of the tenant having agreed to pay rent at an enhanced rate of Rs. 185/- per month instead of Rs. 137/8/- per month. Simultaneously two rent receipts Exhs. R-26 and R-27 were issued by Habib ul Rehman in favour of the tenant. Exh. R-26 was in respect of the rent from December, 1955 to April, 1956 at the rate of Rs. 137/8/-per month whereas Exh. R-27 was in respect of rent for the month of May at the rate of Rs. 185/- per month. The tenant continued to pay rent at this rate till the building was sold to the landlord (Exh. R-27 to R-41). It was thus pleaded that writing Exh. R-2 and the rent receipts amounted to consent in writing for the acts of sub-letting.
    The learned Additional Rent Controller came to the conclusion that two sub-tenancies had been created prior to the coming into force of the delhi & ajmer rent control act, 1952 (hereinafter referred to as act of 1952) while the remaining sub-tenancies were created subsequently. He also found that Mst. Kalsum Bi had given her consent in writing to sub-letting through Habib ul Rehman. He did not accept the contention of the landlord that he bona fide required the premises for reconstruction. The application of the landlord was, therefore, dismissed.
    The landlord preferred an appeal to the Rent Control Tribunal against the order of the Additional Rent Controller. The Tribunal found that the writing Exh. R-2 was genuine; that it was not necessary to obtain the consent in writing in terms of Section 14 (1) (b) of the Act of 1958 before creating the Sub-tenancies; and that the consent given by Mst. Kalsum Bi through her attorney Habib ul Rehman was not illegal. The Tribunal also up-held the finding of the Additional Rent Controller that the landlord did not require the premises bona fide for reconstruction and dismissed the appeal.
    When this matter came up before I.D Dua, C.J (now Hon'ble Judge of the Supreme Court) he decided to place the appeal before a Division Bench so that the scope and effect of the decision of the Supreme Court in Karam Singh Sobti v. Partap Chand and another, 1964 P.L.R 210 (1) may be determined. It is in these circumstances that the matter has come up before us.
    Under sub-section (2) of Section 39 of the Act of 1958 an appeal lies to this court only on a substantial question of law. This court, therefore, cannot re-assess the evidence afresh and enter into merits of the case, and is bound by the decision of Tribunal on questions of fact.
    Mr. L.R Gupta, learned counsel for the landlord-appellant, contends that the writing, Exh. R-2 is not genuine and is forged; and that Exh. R-2 read with rent receipts Exh. R-26 and R-27 do not amount to consent in writing. The Tribunal after detailed consideration of the evidence on record, including the statements of Om Parkash RW2 and Jagdish Pershad, RW3 who were present at the time Exh. R-2 was written, came to the conclusion that this writing was genuine and was not forged. This is a finding of fact and cannot be interferred with in the appeal.
    The landlord had not challenged before the Tribunal that the writing Exh. R-2 read with rent receipt Exhs. R-26 and R-27 does not amount to consent in writing.
    The interpretation of a document, unless it is a document of title, is a question of fact and cannot be raised for the first time in appeal under section 39 of act of 1958.
    It is then contended by Mr. Gupta that the consent in writing required under Section 14 (1) (b) of the Act of 1958 should be obtained previous to the sub-letting and the consent obtained after sub-letting will not save the tenant from eviction. section 16 of this act is relied upon. Section 14 (1) (b) of Act of 1958 is in the following terms:
    “14. (1) (b) —
    that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;”
    Relevant portion of Section 16 is as under:
    “16. (1)
    Where at any time before the 9th day of June, 1952 a tenant has sublet the whole or any part of the premises and the sub-tenant is, at the commencement of this Act, in occupation of such premises, then, notwithstanding that the consent of the landlord was not obtained for such subletting, the premises shall be deemed to have been lawfully sublet.
    (2) No premises which have been sublet either in whole or in part on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sublet.
    (3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord,
    (a) sublet the whole or any part of the premises held by him as a tenant; or
    (b) transfer or assign his rights in the tenancy or in any part thereof.
    ** ** ** **
    ** ** ** **”
    At this stage Section 13 (1) (b) of Act of 1952 may also be reproduced which was as under:
    “13. (1)
    (b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act, —
    (i) sublet, assigned or otherwise parted with the possession of, the whole or any part of the premises; or
    ** ** ** **”
    Section 16 of the Act of 1958 holds that key to the interpretation of provisions of clause (b) of sub-section (1) of Section 14 of this Act as well as of clause (b) of sub-section (1) of Section 13 of the Act of 1952. It deals with restrictions on subletting. Sub-section (1) of Section 16 makes subletting lawful, though it was without the consent of the landlord, provided that the subletting has taken place before 9th day of June, 1952 and the sub-tenant is in occupation of the premises at the time when the Act of 1958 came into force. Sub-section (2) of Section 16 reiterates the provisions of clause (b) of sub-section (1) of Section 13 of Act of 1952 and lays down that that the subletting after 9th day of June, 1952 without obtaining the consent in writing of the landlord shall not be deemed to be lawful. It does not say that the requisite consent should be obtained before subletting the premises and the consent obtained after subletting will not enure for the benefit of the tenant. However, sub-section (3) of Section 16 prohibits subletting of the premises after commencement of Act of 1958 without the ‘previous’ consent in writing of the landlord. The use of word ‘Previous’ in this sub-section shows that where it was the intention of the legislature that the consent in writing should be obtained before subletting, it said so specifically. The absence of the word ‘previous’ in sub-section (2) shows that it was not the intention of the legislature that consent in writing should be obtained before subletting. Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in subletting to escape forfeiture of tenancy. Since the absence of consent in writing by a landlord for subletting gave rise to unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement. The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litigation on this ground. After all a landlord could always agree to subletting either before or after subletting of the premises. For that reason no condition was laid down that such consent should be obtained subletting the premises.
    Mr. Gupta relies on Karam Singh Sobti's (1) case where a passing observation was made by their Lordships of the Supreme Court that a subletting after June, 1952 without the previous consent in writing of the landlord was treated as un-lawful for the purposes of the Act of 1958. We have gone through this judgment and we find that their Lordships were not concerned with either Section 14 (1) (b) or Section 16 of the Act of 1958 or Section 13 (1) (b) of Act of 1952, when those observations were made. After making a reference to Sections 16, 17 and 18 of the Act of 1958 it was observed by their Lordships that they were not concerned with the details of those provisions except to point out that the Act of 1958 made radical changes in the matter of eviction of tenants on the ground of subletting and that a distinction was made between subletting before June, 1952 and subletting after that date. It was in that connection that those observations were made. This judgment did not lay down that consent in writing of the landlord for subletting has to be obtained by a tenant before actually creating the sub-tenancy after June, 1952.
    Mr. Gupta contends that the consent given by Mst. Kalsum Bi was illegal since it was given in consideration of the enhanced rent which the tenant agreed to pay, and the agreement to pay the enhanced rent was in breach of the public policy. In this connection he refers to Sections 5 and 16 (4) of the Act of 1958 which are in the following terms:
    “5. (1) Subject to the provisions of this Act, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary.
    (2) No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy of any premises, —
    (a) claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever, in cash or in kind, in addition to the rent; or
    (b) except with the previous permission of the Controller, claim or receive the payment of any sum exceeding one month's rent of such premises as rent in advance.”
    Sec. 16 (4): —
    “No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the subletting of the whole or any part of the premises held by the tenant.”
    It is contended that since Mst. Kalsum Bi allowed the tenant to have the sub-tenants on the condition of the latter's agreeing to pay enhanced rent in breach of these provisions the consent became illegal. The prohibition is against the person claiming or receiving in excess of the standard rent. There is nothing on record to show as to what was the standard rent of the premises and so it cannot be assumed that the increase in rent results in any excess of the standard rent. Notices exchanged between the parties have been referred to by the learned counsel. Whereas the notice sent on behalf of the landlord alleges that the standard rent of the premises is not less than Rs. 200/- per month the reply of the tenant to this notice is that it cannot be more than Rs. 185/-. But these do not in any manner show as to what the standard rent was. Receiving payment of any amount as premium or pugree or any other consideration whatsoever, in cash or in kind, in addition to the rent in consideration of the grant, renewal or continuance of a sub-tenancy is also prohibited. It is not the case of the appellant that any premium or pugree was received for giving the consent. As already discussed the increase in rent, as long as it was not in excess of the standard rent, being not prohibited, could be charged from the tenant and so could not be termed illegal. Mr. Gupta has referred to A.I.R 1959 S.C 689 (Waman Shriniwas Kini v. Ratilal Bhagwandas and Co.) (2) where the Supreme Court while dealing with Bombay Rents, Hotel and Lodging House Rates Control Act found that subletting was absolutely prohibited and so an agreement entered into after that Act had come into force, contrary to the provision prohibiting subletting, would be unenforceable as being in contravention of the express provision of the Act which prohibited it. The appellant cannot derive any benefit from it. Delhi Rent Control Acts did not absolutely prohibit subletting. In our opinion Tribunal was right in holding that the consent was not illegal since the enhanced rent did not go beyond the standard rent of the premises.
    The last contention of Mr. Gupta is that the initial act of subletting by the tenant without prior consent in writing of landlord, being illegal, subsequent consent of Mst. Kalsum Bi will not amount to a waiver of this ground of eviction. In this connection he refers to Sections 86 and 92 of Civil Procedure Code and relies upon Mohan Chand v. Manindra Nath, A.I.R 1955 Cal. 442 (3). Thakore Saheb Khanji Kashari Khanji v. Gulam Rasul Chandbhai, A.I.R 1955. Bombay 449 (4), and Gaekwar Baroda State Railway v. Hafiz Habib Ul Haq and others, A.I.R 1938 PC 165 (5) where consent given during pendency of suit was held illegal. Mr. Kirpal has referred to A.I.R 1947 P.C 197 (Vellayan Chettiar and others v. The Government of Province of Madras and another) (6) where while dealing with Section 80 C.P.C it was held that though the provisions of that section were mandatory and must be enforced by the court, they could be waived by the authority for whose benefit they were provided. While dealing with Sections 86 and 87 of the Code of Civil Procedure, it was held that the condition could not be waived by the sovereign princes since the consent was to be given by a third party who was not a party to the suit.
    In view of our decision that tenant could obtain the consent in writing of the landlord under the Act of 1952, we need not decide this question.
    The result is that appeal is dismissed but in the circumstances of the case the parties are left to bear their own costs.
    Appeal dismissed.
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    M/S Delhi Vanaspati Syndicate v. M/S Bhagwan Das Faqir Chand
    (Jan 21, 1971)